In the Matter of an Inquiry Relating to an Election for an Office in the Victorian Baking Section of the Miscellaneous Workers Division of the Australian Liquor Hospitality and Miscellaneous Workers Union
[1998] FCA 642
•28 MAY 1998
FEDERAL COURT OF AUSTRALIA
INDUSTRIAL LAW - registered organisation - election inquiry - inquiry into alleged irregularity - whether persons not entitled to vote received ballot papers - discretion to refuse relief where office the subject of the inquiry faces imminent abolition - whether applicant acted reasonably in applying for inquiry.
Workplace Relations Act 1996 (Cth), ss 218, 219, 223, 226, 342, 223
Re Watson (1986) 14 IR 335, followed
IN THE MATTER OF AN INQUIRY RELATING TO AN ELECTION FOR AN OFFICE IN THE VICTORIAN BAKING SECTION OF THE MISCELLANEOUS WORKERS DIVISION OF THE AUSTRALIAN LIQUOR HOSPITALITY AND MISCELLANEOUS WORKERS UNION
VG 295 of 1997
MARSHALL J
MELBOURNE
28 MAY 1998
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 295 of 1997
BETWEEN:
IN THE MATTER OF AN INQUIRY RELATING TO AN ELECTION FOR AN OFFICE IN THE VICTORIAN BAKING SECTION OF THE MISCELLANEOUS WORKERS DIVISION OF THE AUSTRALIAN LIQUOR HOSPITALITY AND MISCELLANEOUS WORKERS UNION
JUDGE(S):
MARSHALL J
DATE OF ORDER:
28 MAY 1998
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
An irregularity has occurred in relation to the election for the office of Baking Section Secretary-Treasurer of the Miscellaneous Workers Division, Victorian Branch of the Australian Liquor Hospitality and Miscellaneous Workers Union as a result of the delivery of ballot papers to 133 persons who were not entitled to vote at the election.
The inquiry be terminated.
It is certified that the applicant acted reasonably in applying for the inquiry.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 295 of 1997
IN THE MATTER OF AN INQUIRY RELATING TO AN ELECTION FOR AN OFFICE IN THE VICTORIAN BAKING SECTION OF THE MISCELLANEOUS WORKERS DIVISION OF THE AUSTRALIAN LIQUOR HOSPITALITY AND MISCELLANEOUS WORKERS UNION
JUDGE(S):
MARSHALL J
DATE:
28 MAY 1998
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
On 24 December 1996 the Australian Electoral Commission (“AEC”) declared the result of an election for an office in the Australian Liquor Hospitality and Miscellaneous Workers Union (“the Union”). The Union, as a matter of administrative convenience, is divided into two divisions, the Miscellaneous Workers Division (“MW Division”) and the Liquor and Hospitality Division. The divisions are in turn organised into branches. There is a Victorian Branch of the MW Division (“the Branch”). Within the Branch is a section known as the Baking Section (“the Baking Section”). The office, the subject of the AEC’s declaration on 24 December 1996, was that of Baking Section Secretary-Treasurer.
There were two candidates in the election. The applicant, Ms Veronica Ilias, received 398 votes in the election. The successful candidate was Mr Rod Gray, who received 404 votes, thereby winning the election by a narrow margin of six votes. On 23 June 1997, almost six months after the declaration of the result, Ms Ilias applied pursuant to section 218 of the Workplace Relations Act 1996 (Cth) (“the Act”) for an inquiry by the Court into whether there had been an irregularity in relation to the election for Baking Section Secretary-Treasurer. On the basis of information provided in a statutory declaration, affirmed by Ms Ilias, I ordered that there were reasonable grounds for the application and made directions for the conduct of the inquiry pursuant to s 219 of the Act. Leave to appear at the inquiry was granted to the Union, the AEC and Mr Gray.
The inquiry was listed for hearing on 25, 26 and 28 May 1998, at the same time as two other related applications. Those applications are:
· an application made by the committee of management of the Baking Section of the Victorian Branch of the MW Division of the Union for a ballot for withdrawal from amalgamation pursuant to Division 7A of Part IX of the Act; and
· an application pursuant to s 209 of the Act.
These reasons only deal with the election inquiry and not with the applications made pursuant to Division 7A of Part IX of the Act or s 209.
THE IRREGULARITY
Mr Robert Hinkley of counsel appeared for Ms Ilias and the Union. Mr Herman Borenstein of counsel appeared for Mr Gray. Both counsel agreed that an irregularity had occurred in relation to the election, by the Returning Officer delivering ballot papers to 133 persons who were not entitled to vote in the election. Such persons were on the electoral roll used in the ballot, but should not have been on the roll as they were not financial members of the Union as at 30 September 1996, the relevant cut-off date under the Union’s rules. I accept the contentions of counsel in that regard, which were based on uncontradicted evidence from Mr Daley, the Secretary of the Branch. I find therefore that an irregularity has occurred in relation to the election for office of Baking Section Secretary-Treasurer due to the provision by the Returning Officer of ballot papers to 133 persons who were not entitled to vote at the election.
WHETHER THE ELECTION OF MR GRAY SHOULD BE DECLARED VOID ?
Mr Hinkley submitted that the Court should also make an order pursuant to s 226(1)(b) of the Act which would declare any acts done by Mr Gray, with respect to the application for a ballot pursuant to Division 7A of Part IX of the Act, to be void. The application for a ballot is made to bring about a vote upon whether the Baking Section should withdraw from the Union. Mr Hinkley contended that the application was a highly significant matter in the affairs of the Union and went to its very existence. I am not persuaded that I should make any order under s 226(1)(b) of the Act. Section 226(1) provides as follows:
“(1) Where the Court declares void the election of a person who has, since the election, purported to act in the office to which the person purported to have been elected, or declares such a person not have been elected:
(a) subject to a declaration under paragraph (b), all acts done by or in relation to the person could validly have been done by or in relation to the person if the person had been duly elected are valid; and
(b) the Court may declare an act referred to in paragraph (a) to have been void , and, if the Court does so, the act shall be taken not to have been validly done.”
The operation of the sub-section is premised upon the Court making an order declaring the election of a person void. A preliminary issue arises as to whether there is any utility in the Court declaring the election of Mr Gray to be void. Pursuant to the rules of the Union, the office which Mr Gray holds expires on 3 August 1998. Thereafter, no such office or equivalent office will exist within the Union. Even if the AEC is able to organise a new election before 3 August 1998, the term of the office of the successful candidate will be extremely brief. The only point of declaring Mr Gray’s election void would be to put in train the process leading to a new election. Upon the finding of an irregularity, the Court is not bound to make any order of the kind contemplated by s 223(3) of the Act which might lead to a new election. The Court has a discretion to make no order interfering with the election of a successful candidate, albeit that an irregularity which may have affected the result of an election has been found to have occurred. This discretion to make no order will be exercised in the appropriate circumstances.
In my view such a circumstance is one which prevails in the present matter. There is absolutely no utility in ordering a new election for the office of Baking Section Secretary-Treasurer, given that the office of Secretary-Treasurer would face imminent abolition, if it were not already abolished, prior to the result of a new election being declared. Similar, although not so striking circumstances, would have led Keely J to exercise his discretion not to make any order for a new election, had he found an irregularity in Re Watson (1986) 14 IR 335 at 339.
I reject Mr Hinkley’s submission that I should order a new election having regard to the possibility that Mr Gray will hold office in a new organisation in the future as result of his holding of his current office. This submission is based on a possible outcome of the application made pursuant to Division 7A of Part IX, if that application for a ballot were successful, that possible outcome being as follows; if a ballot resulted in withdrawal by the Baking Section from the Union, Mr Gray would hold the office of Secretary/ Treasurer in the successor registered organisation to the Baking Section, by virtue of a certain transitional provision in the proposed rules of a successor registered organisation.
In my view, if the application for ballot, was successful, and if the ballot in turn led to Mr Gray holding office for a further period, that would be a consequence flowing from the application for ballot and would be well known to those persons who exercise their vote in any such ballot. The office held after a successful ballot for withdrawal from the organisation is not the office, the subject of the inquiry. In my view, the court would be assisted in resolving the application for ballot by not being distracted by the election inquiry. Further, there is a duty in the court to determine election inquiries expeditiously. I have no present idea when I will be able to determine the application for a ballot. I am about to consider whether to allow an amendment to that application.
As I am not prepared to declare void the election of Mr Gray, no occasion arises for the invocation of s 226(1)(b) of the Act. Although it is not necessary to determine the issue, had I been of the opinion that the election of Mr Gray should have been declared void, I would not have held that the acts he took in respect of the application for a ballot under Division 7A of Part IX of the Act should be taken not to have been validly done. As Mr Borenstein submitted, the application for a ballot was made at a time well before this inquiry was instituted. Additionally, it is my view that absent, unusual and/or compelling circumstances, a person elected to an office is entitled to discharge fully the functions of such office unless a contrary order is made by the Court, for example, that a prior incumbent occupy the office pending a new election. No such consideration was relevant in the instant circumstances.
CERTIFICATION
Mr Hinkley requested that I certify that Ms Ilias acted reasonably in applying for the inquiry. See s 343(2) of the Act. Given my finding on the question as to whether an irregularity has occurred, I find his submission persuasive. I am prepared to so certify out of an abundance of caution, if such certification be necessary, as to which see s 342(2)(d) of the Act. Given that I am not prepared to make any order declaring Mr Gray’s election void or an order for a new election, it is appropriate that I terminate the inquiry. See s 223(5) of the Act.
ORDERS
The orders I make in the inquiry are as follows:
1. An irregularity has occurred in relation to the election for the office of Baking Section Secretary-Treasurer of the Miscellaneous Workers Division, Victorian Branch of the Australian Liquor Hospitality and Miscellaneous Workers Union as a result of the delivery of ballot papers to 133 persons who were not entitled to vote at the election.
2. The inquiry be terminated.
3. It is certified that the applicant acted reasonably in applying for the inquiry.
I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall
Associate:
Dated: 28 May 1998
Counsel for the Applicant: Mr Robert Hinkley Solicitor for the Applicant: Ryan Carlisle Thomas Counsel for the Australian Liquor Hospitality and Miscellaneous Workers Union: Mr Robert Hinkley Solicitor for the Australian Liquor Hospitality and Miscellaneous Workers Union: Ryan Carlisle Thomas Counsel for the Respondent: Mr Herman Borenstein Solicitor for the Respondent: Howie & Maher Solicitor for the Australian Electoral Commission: Australian Government Solicitor
Date of Hearing: 25, 26 & 28 May 1998 Date of Judgment: 28 May 1998 (ex-tempore)
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